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128 Harv. L. Rev. F. 165 (2014-2015)
Adam Smith's First Amendment

handle is hein.journals/forharoc128 and id is 165 raw text is: ADAM SMITH'S FIRST AMENDMENT Robert Post & Amanda Shanor* Until recently, Washington, D.C., maintained what most would re- gard as a perfectly ordinary licensing scheme for tour guides. In 2014, the D.C. Circuit declared the scheme unconstitutional under the First Amendment in a remarkable case entitled Edwards v. District of Columbia.1 The court announced that the District's regulations must be reviewed under intermediate scrutiny because they burden speech; the regulations made it illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so without first obtaining a license.2 Licenses were awarded to those who passed a test and paid a $200 registration fee.3 After a rather scathing review, the court concluded that the regula- tions failed directly to advance the government's interest in protecting D.C. tourism from dishonest or unsatisfactory tour guides.4 It found that the private market - operating through rating sites like Yelp and TripAdvisor - was instead sufficient to turn the coal of self-interest into a gem-like consumer experience,'s thereby rendering the Dis- trict's scheme superfluous. In so holding, the court reminded the Dis- trict that the seminal work of the celebrated economist and philoso- pher Adam Smith had long ago captured the essence of this timeless principle: 'It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest. ,,6 The court's reasoning is startling. Until very recently, it was well accepted that purely economic regulations are subject to rational basis review. This was the point of consigning Lochner v. New York7 to the anticanon.8 Since the New Deal, black-letter constitutional law has authorized the Nation to regulate the complexities of modern economic * We wish to thank Amy Kapczynski and Jack Balkin for their invaluable assistance. 1 755 F.3d 996 (D.C. Cir. 2014). 2 Id. at 998; see also id. at 1oo0-02. 3 Id. at 998. 4 Id. at ioo6. By contrast, the Fifth Circuit recently concluded that New Orleans's similar tour guide licensing scheme withstood First Amendment challenge. Kagan v. City of New Orleans, 753 F.3d 56o (5th Cir. 2014), cert. denied, No. 14-585, 2Q15 WL 731879 (Feb. 23, 2Q15). See also Edwards, 755 F.3d at ioog n.15. 5 Edwards, 755 F.3d at ioo7. 6 Id. (quoting ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 12 (Digireads.com Publishing 2004) (1776)). 7 98 U.S. 45 (1905). 8 See Jamal Greene, The Anticanon, 125 HARV. L. REV. 379 (2011); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873 (1987).

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